Court Order to “Draft Our Daughters” Caused by Congressional Indifference

If parents learn someday soon that their 18-year-old daughters must register with Selective Service for a possible future draft, some may ask, “Who is responsible for this?”

Texas District JudgeGray H. Miller deserves part of the blame. On February 22 Judge Miller declared that the current Selective Service System, which imposes registration requirements and penalties for non-compliance on young men only, is unconstitutional.

Judge Miller’s decision favored the San Diego-based National Coalition for Men (NCFM), which sued Selective Service on behalf of two draft-age male plaintiffs, one of whom resides in Texas. The plaintiffs claimed that male-only registration requirements violate men’s equal protection rights.

Judge Miller agreed, issuing a 19-page declaratory judgment in their favor. (The ruling stopped short of an injunction ordering immediate repeal or revision of the law.)

The Texas district court erred for several reasons that likely will be challenged on appeal, but this comprehensive CMR Policy Analysis explains why bi-partisan blame for his ruling primarily belongs to Congress:

Both political parties share responsibility. Had Congress challenged policy changes that the Obama Administration imposed over the objections of the Marine Corps, the outcome of this court decision could have been quite different.

Egalitarian Rules Impede Combat Readiness

In December 2015, former Defense Secretary Ashton Carter decided that military women should be eligible for combat arms units such as the infantry on the same involuntary basis as men. Carter’s goal was to promote egalitarian social goals and “gender diversity,” not military readiness.

The Defense Secretary’s sweeping orders disregarded the best professional advice of Marine General Joseph Dunford, who was Commandant at the time. In September 2015 General Dunford exercised his option to ask for exceptions for the infantryand Special Operations Forces and backed his request with three years of empirical data and research findings comparing the effectiveness of men and women in simulated ground combat.

Highly-qualified, motivated women volunteered to participate in nine months of scientifically-monitored field exercises along with average-ability male Marines. As CMR reported in a Statement for the Record of the Senate Armed Services Committee in February 2016, the comprehensive Marine Corps tests from 2012 through 2015 were supposed to prove women’s equality with male counterparts. Instead, researchers found that in simulated close combat tasks, all-male units outperformed gender-mixed teams 69% of the time.

A detailed Memorandum assessing test results, which the Defense Department omitted from its website list of research studies, showed that gender-mixed units were less strong, less fast, less capable of removing casualties from the battlefield, and less lethal during simulated combat missions attacking the enemy.

Secretary Carter, unfortunately, denied General Dunford’s formal request, and key documents setting forth the rationale behind it were withheld from public view. Congress still has the power and responsibility to restore sound policies affecting women in uniform, but voters need to step up and hold elected officials accountable.

Combat Policies Tied to Selective Service Requirements

Carter’s arbitrary policy change removed a major reason why the U.S. Supreme Court previously had upheld the constitutionality of women’s exemption from Selective Service obligations. As CMR explained in this detailed Policy Analysis, in the landmark 1981 decision Rostker v. Goldberg, the Supreme Court ruled that since women were not assigned to direct ground combat units, Congress could exempt young women from Selective Service registration for a possible future draft.

It was not necessary to make a record of physical disparities because men and women were not “similarly situated” in close combat units. That was an easy call to make.

But now that the previous administration changed the women-in-combat rules, Texas Judge Miller applied an “equal protection” standard that was higher than the “rational basis” test that federal courts have applied in previous similar cases.

Miller told the defendant Selective Service System that it could no longer make a credible case for exempting women from registration and a possible future draft. The judge also made the gratuitous claim that the time to debate women in combat and related issues has passed.

On the contrary, an informed national debate about this national security issue has not even begun.

The House has not had a public hearing examining the women in combat issue since 1979, 40 years ago. And except for a brief session with Pentagon officials in February 2016, the Senate has not held a hearing on the issue since 1991, 28 years ago.

The Republican-controlled114th Congress failed to challenge the Obama Administration’s irresponsible policy changes in 2015, and the Trump Administration has not reviewed or revised them since taking office in January 2017.

With few exceptions, congressional leaders did not question or challenge the previous administration’s decision to treat women like men in the combat arms. Both the House and Senate Armed Services Committees avoided the issue, and failed to conduct public hearings with independent witnesses and experts who could have made a record of testimony on the highly-credible scientific research that the Marines had produced over three years.

Absent congressional action to expose facts that would have discredited Obama/Carter women-in-combat policies, Judge Miller deferred to the Executive branch’s arbitrary decision to promote “gender diversity” in the military regardless of the consequences.

In effect, Congress surrendered its Article I policy-making authority to President Obama's Defense Secretary and froze the American people out of the decision-making process.

If Congress had challenged the previous administration and made a public record of research information that thoroughly discredited egalitarian theories of gender equality, the government’s arguments in the Texas court would have been stronger and might have prevailed.

The Purpose of Selective Service

If America ever faces a catastrophic military emergency that exceeds the capabilities of the All-Volunteer Force, it might be necessary to re-activate a Selective Service draft. The system is a relatively low-cost insurance policy maintained to prepare for unforeseen contingencies requiring speedy mobilization of troops.

If Selective Service is reactivated, the primary need would be for “combat replacements” – a phrase used to describe personnel who take the places of men fallen in battle. Unlike support units that primarily serve “in harms’ way” in war zones, direct ground combat fighting teams attack the enemy with deliberate offensive action.

Some female volunteers can meet high standards in the combat arms, but most women cannot. When the very survival of our nation depends on swift mobilization and victory in a time of crisis, the Selective Service System should not be bogged down calling up and testing thousands of potential female draftees just to find the few who might meet combat arms requirements.

The point appears obvious, but to make such an assertion in a federal court, it is necessary to present facts that, in this case, remain abundant but missing from the record. The fact remains that in the harsh, physically-demanding environment of direct ground combat, women do not have an equal opportunity to survive, or to help fellow soldiers survive.

Members of Congress should have challenged the previous administration’s policy changes and focused on the scientific research and empirical findings that still disprove politically-correct theories about “gender equality.” Because Congress failed to do so, Judge Miller deferred to the Obama Administration’s unchallenged decision to treat women like men in the combat arms.

He also made an exaggerated statement in a footnote that is not consistent with research findings: “The average woman could conceivably be better suited physically for some of today’s combat positions than the average man . . . and “Combat roles no longer uniformly require sheer size or muscle.” The politically-correct rhetoric ignores physical realities that have not changed.

If Selective Service had to register and draft equal numbers of men and women, administrative burdens of finding a few women who might be capable of fighting in close combat would impede military readiness and slow mobilization at the worst possible time.

Women’s Selective Service Exemption Is Still Justified

Despite inadequate legislative history, Justice Department lawyers representing the defendants presented strong arguments before the court. Among other things, the government correctly noted that Congress had retained the Military Selective Service Act (MSSA) even after the Obama Administration changed the rules regarding women in direct ground combat in December 2015.

Congress could have voted to abolish the MSSA or to include women in registration, but instead it established the National Commission on Military, National, and Public Service to review all options and to make recommendations on ways to revise or repeal the Selective Service law.

The government also cited the National Defense Authorization Act for 2017 (NDAA), whichstated that the purpose of a possible future draft would be “mass mobilization of primarily combat troops.” This is significant, since many people wrongly assume the Selective Service likely would conscript both men and women for support functions, not combat operations mobilized to fight an existential threat.

Selective Service does not work that way. No one would be drafted unless there were a critical need for combat replacements during a major military emergency when troops are dying on the battlefield. Women have always volunteered to serve during our nation’s wars, and there is no reason that they would not do so in the future.

How Can Congress Prevent “Draft Our Daughters” Mandates?

When Defense Secretary Carter made women eligible for ground combat units on the same involuntary basis as men, the stated legal premise behind the landmark Rostker v. Goldberg decision vanished.

It is significant, however, that a formal Defense Department notice to Congress sent after the rule change said, “The Court in Rostkerdid not explicitly consider whether other rationales underlying the statute would be sufficient to limit the application of the MSSA to men. (emphasis added)

Successful legal defense of “other rationales” to continue women’s exemption from Selective Service registration would require a record focusing on facts and physical realities that Marine Corps research confirmed. To summarize logical points:

If “equal protection” is the goal, any call-up of men ages 18-26 for military service would have to include equal numbers of young women.

Even though some exceptional women may be able to meet minimal standards, the fact remains that most women cannot meet combat arms standards while most men can.

The Selective Service system would have to divert scarce time and resources to find, evaluate, and train thousands of women ˗˗ just to find the few who might be minimally qualified for the combat arms.

Jamming the Selective Service system during a critical time of national emergency, instead of concentrating on men who can be rapidly trained to fight in physically-demanding ground combat units, would create a political crisis and a paralyzing administrative overload at the worst possible time.

The Texas ruling by Judge Miller puts the ball back in Congress’s court. A responsible debate is long overdue, but it must begin with the honest evaluation of the underlying issue – women in direct ground (infantry) combat – which did not occur in 2015 or since then.

Will the Commission Recommend Co-Ed Conscription for Military or National Service?

Congress allowed the Obama/Carter mandates regarding women to stand without challenge, but in May 2016 there was a heated debate about “Draft Our Daughters” legislation, which veered into a discussion of mandatory national service.

The House considered but ultimately rejected an amendment to the NDAA for 2017 to include women in Selective Service. Senate Armed Services Committee Chairman John McCain, acting without warning and behind closed doors, sponsored similar “Draft Our Daughters” legislation.

An uproar ensued, so Chairman McCain dropped that proposal in conference and substituted language establishing the National Commission on Military, National, & Public Service.The 11-member commission is authorized to spend $45 million over three years.

Now in its second year, the commission published its first five-page Staff Memorandum in February 2019, which reflected two controversial assumptions:

a) Women would be equally effectivein combat arms units such as infantry if a draft were necessary, and

b) The government should be empowered to deprive young people of personalfreedom for reasons other than national defense.

This paragraph, which is excerpted from the National Commission’s February Staff Memorandum, suggests Big Government mandates to ensure compliance:

“Punishments or sanctions for failing to meet a service requirement could range from ineligibility for government benefits or employment to fines or imprisonment. The program could offer incentives such as completion certificates, educational benefits, preference in federal hiring, or even a tax-free award to every American granted at birth and received by citizens after their service term. Whatever means are in place to encourage compliance, a well-structured mandatory service program would require a system to monitor participation.” (p. 5, emphasis added)

Potential elements of coercion would allow no real choice for young men and women but mandatory “service” directed by some sort of national service bureaucracy.

This concept ignores a key point that CMR President Elaine Donnelly made in a Statement for the Record of the National Commission in November 2018: It is not necessary or wise to conscript women for military service, or to compel national service from anyone for less than compelling reasons. The lives of America’s young people should not be commandeered, making them servants of the government.

Members of Congress cannot delegate their responsibility to consider inconvenient truths that the previous administration ignored, whether the National Commission does so or not.

With national security and the lives of young people at stake, it is long past time for the House and Senate Armed Services Committees to conduct a serious debate about the harmful consequences of treating women like men in the combat arms.

Members of Congress and Trump Administration officials should release all relevant information so that a fully-informed, public debate can begin. Both branches of government should assign priority to military readiness, not “gender diversity” or big government mandates that would weaken our military and the nation it defends.

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Note:

Interested parties may file comments at this National Commission website. They can also contact their own Representative and Senator in Washington, D.C. through their websites, which provide mail and email addresses.

The Center for Military Readiness is an independent public policy organization that reports on and analyzes military/social issues. More information is available on the CMR website, www.cmrlink.org.